Man convicted of 2007 baby death free pending appeal

LAS CRUCES >> Robert Flores left a state prison Thursday morning, conditionally freed on a rare bond, about three months after being sentenced for his role in the death of his baby girl.

The 4-month-old infant, Kalynne, suffocated in a laundry basket in December 2007. Flores, a college student at the time and former star quarterback at Artesia High, had placed her there -- atop clothes, inside a closet -- so he wouldn't have to take the baby to buy beer, according to Las Cruces police investigators' reports.

In February, after the trial had been moved from Las Cruces to Albuquerque on a change of venue, a jury convicted Flores, 28, of two felonies: negligent child abuse resulting in death and evidence tampering. This spring, 3rd Judicial District Judge Fernando Macias of Las Cruces sentenced Flores to 18 years in prison.

After filing Flores' appeal to the New Mexico Court of Appeals, his attorney, Mark Pickett of Las Cruces, renewed a motion in June for an appeal bond. On July 19 Macias issued an order granting Flores an $80,000 appeal bond. Court records show he posted $80,000

'Extremely rare'

Filing a motion for an appeal bond then having one set by a judge is uncommon, attorneys said.

Under certain situations state law allows people convicted to be released from prison, via bond, while they wait out appeals.

New Mexico Corrections Department spokeswoman Alex Tomlin described them as "extremely rare."

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Tomlin confirmed Flores' release Thursday from custody at the Guadalupe County Correctional Facility near Santa Rosa, about 250 miles northwest of Las Cruces. Data revealing how many inmates have been released on appeal bonds in recent years was not immediately available.

A number of factors play into the scarcity of appeal bonds. For many inmates, such bonds are financially inviable, attorneys said.

Beyond money matters, legal issues further limit the granting of appeal bonds. By state statute, such bonds are not permitted for those convicted of violent crimes or facing life sentences.

Finally, once an appeal bond motion reaches a judge, he or she must examine two key issues.

First the judge must weigh the defendant's flight risk and possible danger to the community.

Second, the judge must find, "the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial," according to state statutes.

Case history

Pickett first motioned for an appeal bond in April, about two weeks prior to sentencing. In its response, the state argued that Flores' case contained no substantial law or fact questions, according to court documents.

Jacinto Palomino of Las Cruces, the state's lead prosecutor in the case and a former state district judge, did not contest Pickett's assertion that Flores was not a flight risk or danger to the community.

During sentencing, Macias said he did not consider Flores a "monster." Macias was not concerned about Flores' flight risk because Flores had been out on bond for about five years as the case crawled through courts. Flores never violated any release conditions, Pickett said, after putting up hefty cash bonds. The appeal bond has similar conditions.

Still, Macias declined to address the appeal bond then, saying he first wanted to see the meat of Flores' appeal.

Pickett said Tuesday the "big issue" of Flores' appeal addresses a decision made by retired Judge Stephen Bridgforth. Earlier in the proceedings, Bridgforth denied a defense motion to suppress what amounts to a confession by Flores. Pickett contends Las Cruces police violated Flores' constitutional rights during interrogation and made other errors.

Macias' opportunity to examine Flores' appeal came in June when Pickett filed a docketing statement, a document that details the appeal. Days later, in district court, Pickett renewed Flores' appeal bond motion.

Macias ruled on the appeal bond motion July 19, more than a month after Pickett renewed the motion. Macias gave prosecutors more than double the required time to respond.

Palomino did not challenge the renewed appeal bond motion. He did, on Monday morning, file an emergency motion asking Macias reconsider his decision.

'Last ditch effort'

On Thursday Pickett filed a response to Palomino's motion, calling the state's arguments "futile and ambiguous."

Pickett wrote that Palomino's emergency motion failed to challenge Macias' findings. It also "fails to provide any basis" for Macias to reconsider his order granting Flores' appeal bond.

Pickett labeled the state's arguments as a "last ditch effort ... to get a hearing before the Court and to create the media production that normally surrounds hearings in this case."

Officials said a hearing is slated for Tuesday afternoon. But Macias has discretion to cancel it.

Tuesday morning Palomino said the victim's in this case -- Kalynne's mother and her family -- had their state rights violated because Macias made his determination without a hearing.

But as Pickett's latest motion notes, the state doesn't require a judge to hold such a hearing, only that victims can attend any that are scheduled.

If there is a hearing next week, Pickett said Flores plans to be there. Now, he won't need to be transported by prison officials.

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